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Monday, April 09, 2018

In Defense of Law Review Articles

Last week, I had the good fortune to attend a conference on The Future of Legal Scholarship, which was hosted by the Loyola University Chicago Law Journal. It was a very well organized and well attended conference, at which several law professors spoke about a number of topics related to legal scholarship. Both in formal remarks, casual conversation at the conference, and the post-conference chatter on Twitter, several law professors criticized the law review article format and submission/acceptance process. Some of these criticisms were entirely fair. Anthony Kreis, for example, made a strong case for blind review of all law review article submissions. But I heard other criticisms that I think are far less defensible.

One criticism of law review articles that they are too long. If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead. I disagree. I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages. And to say that those ideas ought to be turned into books ignores real differences between books and law review articles. For one thing, most books owe their length to copious amounts of background material that situates the author’s ideas, rather than the support and defense of substantive arguments. That additional background materials is necessary in books because most book publishers want authors to write for a non-legal audience, as well as for legal readers. For another, book authors are not forced to support all of their factual claims with footnotes as they are in law review articles. Annoying as it may be to write such footnotes, the practice keeps authors honest and the footnotes serve as a useful resource for readers. Put simply, if I were to turn my 60 page law review article into a book, I would have to make such significant changes to that article, that it would no longer resemble what I’d originally written.

That isn’t to say that some law review articles couldn’t benefit from some editing that condensed their length. And I am quite glad that we no longer live in a world in which 90 and 100 page articles are the norm. But that is a far cry from saying that the 50-65 page article genre ought to be abandoned in favor of a significantly shorter one.

A second criticism about law review articles is that the effort we put into them would be better spent writing in other formats that are more likely to be read by the general public. Eric Segall made this point quite forcefully at the conference when he said that the essays that he has written for mainstream media outlets have had more impact than his law review articles. Because of the difference in impact, he argued that law schools ought to change their promotion and tenure standards in order to create more incentives for law professors to write shorter pieces aimed at general audiences.

I strongly disagree. There are already many (perhaps too many) incentives for law professors to write non-scholarly pieces. Our reputations and egos benefit from publishing an op ed in a national newspaper, appearing on television, and other activities that are aimed at the general public. We feel good about those publications, other law professors appear to covet them, and our schools’ communications departments are delighted every time we engage in such behavior. So I don’t think that we need to change our promotion and tenure standards to incentivize this behavior; the incentives are already quite strong.

More importantly, a Slate article or an op ed in the Washington Post is no substitute for the time and effort required to write a law review article. Writing a law review article forces you to conduct significant research, think deeply about a problem, and seriously engage with arguments on the other side. In other words, writing a law review article makes you an expert about a particular issue. To be sure, we can distill our expertise into op eds or commentary. But if we write essays or op eds that do not significantly draw on that expertise, then we are no different than a pundit. This country already has a lot of very good legal pundits. What law professors can add to the public discussion is our expertise. We should not change our incentives structure so that it encourages more law professor punditry—especially not if that punditry comes at the expense of the development of expertise.

There are plenty of other criticisms of law review articles. And I may someday write a defense (at least a half-hearted one) about the law review submission/acceptance process. But for now I’ll simply close by saying that we ought not lose sight of the real strengths of law review articles in our haste to criticize the genre.

Comments

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I start with the premise that for the vast majority of law profs who teach at regional schools with at least moderate teaching loads (2:2 or more) and various internal & external service commitments, there are time & opportunities over the course of a career to develop only a handful of truly core, original ideas that translate into foundational law review articles. By that I mean topics that are genuinely worthy of 40-100 pages, building for the author a foundation of informational and analytical mastery and authority.

I favor what I've called an "intellectual activist" approach, which starts with the foundational piece and then uses that article as a base for law reform and public education activities. Thus, instead of framing this debate as law review articles *vs.* litigation/legislation/blogs/op-eds/etc., it should be *and*, whereby the latter flow from the former. In addition, subsequent law review publications can be updates/tweaks/revisits of the foundational piece, but via shorter essay-length articles.

I strongly endorse blogs as a way of communicating beyond the professoriate. I've been writing a blog for some 10 years (https://newworkplace.wordpress.com), and it has proven a great way to circulate ideas and information publicly. It also has led to various media inquiries calling attention to my work. I think those of us who are not at elite law schools have to be especially pro-active in linking scholarly, law reform, and public education activities, because outside stakeholders are much less likely to engage us simply due to our institutional affiliation alone.

The idea that you shouldn't write law review articles because your time is better spent doing X seems like a slippery slope best avoided. If you start down that path, then might one make the argument that, for the vast majority of public intellectualizing, the time and written work product is better devoted to litigation and writing briefs for a particular cause? If we don't believe in some special multiplier of academic work, then what are we doing in the academy? The reality is that nobody has any idea what the maximand in our business really is, so there should be plenty of tolerance for different people to pursue different equilibria among books/papers/punditry/litigation. It's only once someone posits something like the proposition that your time on Y is better devoted to X that you then open yourself to the criticism that, if we're talking about maximizing something, time spent on X is actually inferior to time spent on Z.

Posted by: Lee Kovarsky | Apr 10, 2018 9:28:26 AM

Couldn’t agree more Carissa. It would be a sad world if we didn’t have a basis in research about which we wrote. We would just be overpaid journalists.

Posted by: Shima Baughman | Apr 10, 2018 9:17:38 AM

Just an excellent illustration , how even a professor of law , can write very useful article , in a daily popular newspaper :

The US , or legal experts , are deeply engaged or concerned , concerning the issue of self pardon of the president ( or abusing the pardon power ) . Now , sometimes , focusing , upon a very narrow issue , but highly relevant , can be useful , and influencing , and coherent , let alone in a very hot public issue .

Jed Shugerman and Ethan J. Leib are professors at the Fordham University School of Law , and they wrote recently , an important and brief article in the Washington post . The whole idea for them , is a neglected article in the constitution , here I quote :

" Rather, the answer lies in a neglected part of the Constitution: Article II, Section 3, which directs that the president “shall take Care that the Laws be faithfully executed.” "

End of quotation :

So , by concentrating , only on this apparent narrow issue , means : Not enough for the president , to execute laws ,but , to do it " faithfully " that is to say, that he must put the public interest , above his narrow interest , while executing the laws . Briefly : The law itself , is not sufficient !! should be executed faithfully , not just executed !!

So , beyond sophisticated use of disclaimers , one professor or alike like the respectable author of the post , may focus upon very narrow and critical public issue , and do it ,more coherently .

you are right that substituting publication of op-eds in elite newspapers is a poor substitute for publication of law reviews in elite law journals.

what should happen is that every article should be reviewed blindly. there's really no valid excuse for this not to happen. in addition, articles should be shortened because 1) nobody reads the whole thing anyway, and so it is better to write shorter articles that get to the point quicker; 2) shorter articles allow more space and more articles to be published; and 3) shorter articles allow for more efficient review.

in addition, the publishing side of the discipline must be professionalized. academics, judges, and practitioners should review articles, and judges and practitioners should be the reviewers most often utilized to ensure that legal scholarship serves the *wider* legal community.

there already exists speciality, peer-reviewed law journals for things like legal philosophy, legal history, and sophisticated quantitative analysis. i predict more such reviews will pop up as well; however, general law reviews should publish articles of general interest to the legal *community*--not just t-13 faculty.

Posted by: YesterdayIKilledAMammoth | Apr 9, 2018 10:08:22 PM

@Sam - I truly don't understand. It seems to me that blind review is the best way to get more diverse voices into the law reviews, because it ensures that articles are not being chosen based on the prestige or status of the author, but the contents of the article. It would completely eliminate the letterhead effect that is such a problem at so many law reviews. I'm having a hard time even understanding what the argument is that non-blind review increases diversity.

Posted by: J | Apr 9, 2018 9:03:18 PM

If one concern re: the status quo is the over-valuation of article placement, which in turn relies on letterhead bias, then I wonder why a turn to op-eds or other outlets would improve the situation. Based on my experience, placement in mass media outlets relies heavily on connections and nepotism. Student-run LRs are imperfect & probably place too much weight on an author's title or institutional affiliation, so I agree with Eric that we need to reexamine the importance of placement. But if we want to get away from these issues, I hardly think pressuring faculty (particularly jr. faculty) to place an op-ed in the NYT or WSJ is the right way to go.

Sam -- I believe your point about non-blind review may be true at some top law reviews, but this is not universal. Just by way of example, I looked at the articles (not essays or online pieces) published in the last volume (117) of the Columbia Law Review. Of the 13 authors, 12 were men, 9 appear to be white, and 8 were at top 10 law schools. That doesn't strike me as particularly diverse.

Posted by: anon1973 | Apr 9, 2018 8:34:00 PM

was great to be on the panel with you - I think we pretty much completely agree on this

This seems to argue *against* longer journal articles, then. If few people are going to read cover to cover, then it doesn't make much sense to spend all that time laying out the literature and the background and the state of the debate when, as you've pointed out, most people aren't going to read all the way through it. So it seems better to shorten the articles.

If we do that, then we can put in more articles per issue which will accomplish Sam's noble goal of allowing more space in which to feature more voices.

Posted by: YesterdayIKilledAMammoth | Apr 9, 2018 7:02:51 PM

@ Sam, I wouldn't think that's a controversial process if I didn't see the same names showing up over and over and over and over again in top law reviews. Thank you for your contribution.

Posted by: YesterdayIKilledAMammoth | Apr 9, 2018 6:59:17 PM

I think working through hard problems is one thing we are paid to do. And many law review articles don’t do that well anyway. I’ll have more detailed response up on Dorf in the next day or two.

Posted by: Eric segall | Apr 9, 2018 6:58:43 PM

Eric Segall writes: "my main point was few people read 60 page articles from cover to cover"

Thanks for the reply, but I think few people read anything cover to cover. And that's okay. If you write a 50-page article with a 1 paragraph abstract and a 5-page introduction, some people will read the abstract, some the entire article. Hard problems need to be worked through somewhere -- it's what we're paid to do -- even if most people would rather only get the 1-page summary.

Eric also writes: "[Articles] are largely overrated by hiring and promotion committees at the expense of other types of publications." I don't think that's the case, mostly for the reason noted above: Hard problems need to be worked through somewhere -- it's what we're paid to do -- even if most people would rather only get the 1-page summary.

Posted by: Orin Kerr | Apr 9, 2018 6:32:21 PM

I agree with most of Carissa's points. I'll add, as a former Articles editor at a top law review, that the non-blind review process is meant to encourage diversity of voices in the law review literature. There are widespread complaints that law reviews -- and thus, law school tenure pipelines -- are dominated by, say, white men from a particular kind of background. The non-anonymized review process is expressly meant to blunt that tendency by encouraging authors from different backgrounds. You might think that that's a controversial practice, but then you need to address the substantive purpose underlying it, and explain why your criticisms in one context are not in tension with your complaints in another.

Posted by: Sam | Apr 9, 2018 6:23:02 PM

Just adding to my comment :

Not only each case bears different procedure ,strategy and unique factual configuration as mentioned , but worse :
Many times , one case , bears different legal fields all together . So , defamation , may be combined with family issue , with tort , criminal aspects , international and so forth …..
As such , expertise , or total one , is never ever the real effective issue. In fact , in law , nothing is almost narrower than a particular expertise .Because the law in essence , is to prevail in certain case , the rest , marginal !!

Thanks

Posted by: El roam | Apr 9, 2018 6:11:34 PM

Interesting post , yet , I have never encountered any Law Review Article which really covers everything . This is because of the simple fact , that expertise , is never enough . There is no such thing !! Only specific ruling , covers everything typically ( and the more desirable one , is the one of the appeal court of course , or final decision after review and appeal in fact ) .

Typically , every case , differs from another . Each case , offers different factual configuration. Each case provides different strategy of different lawyers . Each case , bears different procedure of all kinds. So , many times , an article , wouldn't cover effectively everything . And what is missed , can change the outcome of the case , so , what seems to be the point one may argue ?? That is not to say , that every decision of a court , is correct of course , yet , almost always , exhausting the concrete issue , from all aspects : Factual , procedural , and strategy .

And , the respectable author of the post, should also think of the readers . Using properly disclaimers , restrictive disclaimer , may finally , give , wiser , and more coherent perspective concerning the whole issue . And why to think of the reader ?? Well , if you care about your country , and public perception , you need to prevail :

Would the input be yours , or of those pundits ( according to you ).

But real expertise besides a verdict , well , in law , with all due respect , there is no such thing !!

Thanks

Posted by: El roam | Apr 9, 2018 6:02:31 PM

Here's one good thing about law reviews: unlike other academic publications, someone actually checks the footnotes to make sure they actually support the citations. Sure, the students don't really know whether the cited sources are reliable, but at least they ensure that the author isn't simply making stuff up. This doesn't happen in other academic fields, which is likely why authors like Michael Bellesiles and Nancy MacLean have felt free to be "inventive."

Posted by: David Bernstein | Apr 9, 2018 5:23:13 PM

JI recently read a book that insisted it was an essay, not a book--binding and dust jacket be damned. According to the author, an essay is a means for trying out new ideas, a space for experimenting. Which means, I guess, a book is not always a book.

Posted by: Zak Kramer | Apr 9, 2018 3:57:45 PM

60 pages is too long. 100 page articles are, frankly, utterly ridiculous. And, to be clear, most of the length of law review articles come from giant-blocked footnotes that nobody reads and block-citing literature maybe 60% of which the author actually read (and more like 40% of which the author read in totality).

The actual crux of every law review article spans about 10 pages. And authors don't footnote every factual claim because it keeps them honest; they footnote every factual claim because the "reviewers" don't know enough about law to know whether the sentence is fact or fiction (unlike peer-reviewed processes found in other disciplines or in UP books).

All that to say, the vast majority of the bulk of law review articles is simply bringing ignorant reviewers up to speed on the debate--actual academics easily can skip the first third of most articles in their field.

Law review articles easily could be hard-capped at 40 pages and literally nothing would be lost except some citations, but citing ten sources for one point is excessive and nobody's reading them all anyway. In addition, law review articles could lose the discursive footnote fetish and use footnotes for simply...citations (gasp) rather than several mini-articles.

Posted by: YesterdayIKilledAMammoth | Apr 9, 2018 3:50:56 PM

Orin, my main point was few people read 60 page articles from cover to cover, and they are largely overrated by hiring and promotion committees at the expense of other types of publications. Your "can't please everyone" comment was a bit snarky and I don't think I was being inconsistent, even if I am wrong. Carisa, the very fact that you blogged about this so well and so quickly somewhat supports my overall remarks. In any event, thanks for engaging so civilly and I may respond on Dorf in the next few days.

e

Posted by: Eric Segall | Apr 9, 2018 2:34:47 PM

I'd also add that the Criticism 1 above can be in significant tension with Criticism 2 above. Criticism 1 says take a 50-page article that is available to any one for free and turn it into a 200-page book that costs $30. Criticism 2 says try to be read by the general public through short pieces available to everyone. So either be longer and harder to access, or else be shorter and easier to access. Can't please everyone, I guess. :)

I'd also note that the combination of publicly-posted law review article and writing or speaking for public audience is a powerful one. You first write the article and post it on SSRN. You then write blog posts or op-eds or whatever you like in which you present the ideas and link to the full-length article. That can combine analytical rigor with public engagement without sacrificing one for the other.